Hollon v. State

• Decision Date: 23 January 1980
• Docket Number: No. 679S158,679S158
• Citation: 272 Ind. 439,398 N.E.2d 1273
• Parties: Michael Allen HOLLON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1273

398 N.E.2d 1273

272 Ind. 439

Michael Allen HOLLON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 679S158.

Supreme Court of Indiana.

Jan. 23, 1980.

Harriette Bailey Conn, Public Defender, David P. Freund, Marcia L. Dumond, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Steven J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Michael Allen Hollon, was convicted by a jury of murder in the second degree, Ind.Code 35-1-54-1 (Burns 1975), and sentenced to life imprisonment. He now appeals raising the following issues:

1) Whether the trial court erred in refusing defendant's tendered instruction regarding insanity;

2) Whether the trial court erred in admitting into evidence fingerprints which were obtained eight days after the crime was committed;

3) Whether the evidence was sufficient to sustain defendant's conviction for second degree murder; and

4) Whether defendant was denied effective assistance of counsel.

The following are the facts most favorable to the state:

Susan Turner was killed by strangulation during the early morning hours of July 5, 1977, at her residence in South Bend. Defendant had had a relationship with Mrs. Turner. Defendant had been observed heading toward Mrs. Turner's residence at least twice in the late evening of July 4, 1977 and early morning of July 5, 1977.

I.

Defense counsel tendered the following instruction regarding insanity:

"A complete incapacity of the defendant's mental faculties need not be proved but rather the ultimate question of fact is whether the defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Crimes resulting from brooding and reflection as well as impulse can negate criminal responsibility."

In determining whether an instruction has been properly refused, we must determine:

"(1) whether the tendered instruction correctly states the law, (2) whether there is evidence in the record to support the giving of the instruction, (and) (3) whether the substance of the tendered instruction is covered by other instructions which are given." Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, 838. (Citations omitted.)

Defendant claims that the jury received no instructions on the defense of insanity upon which he relied. We do find the following instruction which was given by the court:

"A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

"A mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior control. As used in this article (sic), the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct."

The record, therefore, reveals that only the second sentence of defendant's tendered instruction was not covered by another instruction given by the court. This Court adopted its test for insanity in Hill v. State, (1969) 252 Ind. 601, 251 N.E.2d 429. The instruction given by the court contains substantially the same language employed by this Court in Hill. In analyzing the Hill test, we noted,

"Crimes resulting from brooding and reflection as well as 'impulse' could then negate responsibility." 252 Ind. at 615, 251 N.E.2d at 437.

The quote was not included as part of the test itself, but rather was included as a proper conclusion a jury could draw from a certain set of facts. Defendant does not point to evidence of "brooding and reflection" or impulse in the record which would support this portion of his tendered instruction. The trial court did not err in refusing it.

II.

On July 13, 1977, eight days after the crime, police entered decedent's residence and obtained latent fingerprints left next to a hole in the kitchen wall. The prints matched defendant's fingerprints. Defendant argues that this evidence was inadmissible absent a showing that the premises were secured to negate possible tampering.

Defendant cites Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193, as authority for this argument. However, Swope is a "chain of custody" case involving items seized from a defendant's vehicle which was in police custody. This Court indicated that the state would have to

"negate the possibility of the items being placed there by someone after the car was impounded . . . ." 263 Ind. at 162, 325 N.E.2d at 199.

In the case at bar the premises were not capable of being in police custody. More importantly the possibility that the evidence was placed on the premises by someone else is negated by the unlikelihood of defendant's fingerprints being placed on a wall by someone other than defendant. The evidence was properly admitted.

III.

Defendant next claims that there was insufficient evidence at trial to support his conviction for murder in the second degree. Defendant argues that the state failed to carry its burden of proving beyond a reasonable doubt that defendant was sane at the time of the offense.

Defendant's assignment of the burden of proof in this case is correct since the crime occurred in 1977, before the burden shifted to defendants on April 5, 1978. Deel v. State, (1976) 265 Ind. 577, 357 N.E.2d 240, Acts 1978, P.L. 145, § 9, p. 1326.

The state had to prove that, at the time of the crime, defendant possessed "substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Hill v. State, (1969) 252 Ind. 601, 614, 251 N.E.2d 429, 436. Defendant contends that the record does not show adequate expert testimony of his state of mind at the time of the crime.

The court appointed two expert witnesses. Dr. Shriner testified that defendant was socio-pathic but not psychotic and defendant was aware of what he was doing on July 5, 1977. On the issue of control, Dr. Shriner testified,

"Well I know I am not giving very good or concise answers primarily because I don't have them even in instances of people who are categorized sometimes schizophrenic, given particular situations in which an action would immediately jeopardize the person they will have enough judgment not to do something but I would have to assume that a person with this kind of severe personality disorder you know he is inclined to be more impulsive than most of us but I think the acuity of awareness of circumstances is enough that control is possible if the person doesn't think he can get away with it."

Dr. Urruti, also appointed by the trial court, testified that defendant suffered from a socio-pathic personality disorder but was not psychotic.

Defendant's expert witnesses testified that defendant "was not of sound mind at the time of the alleged offense" and that there was "a distinct possibility that he could not conform his conduct to the requirements of law." Another defense witness testified that it would be difficult for defendant to conform his conduct to law

"based on his lifelong difficulties that he has had in ever adhering to basic social standards. He has diminished capacity it would seem to me to respond to normal behavior at times even though he may know what that should be."

The evidence is clearly in conflict. It is the jury's function, not ours, to weigh conflicting evidence. Manlove v. State, (1968) 250 Ind. 70, 232 N.E.2d 874. When there is substantial evidence of probative value supporting the jury's verdict, the conviction will not be set aside. Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776.

IV.

Finally, defendant alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. This Court has held:

"Isolated poor strategy, bad tactics, a mistake, carelessness, or inexperience does not necessarily amount to ineffective counsel unless, taken as a whole, the trial was a mockery of justice." Lowe v. State, (1973) 260 Ind. 610, 612, 298 N.E.2d 421, 422; Blackburn v. State, (1973) 260 Ind. 5, 22, 291 N.E.2d 686, 696.

This standard, modified by the "adequate legal representation" standard of Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919, has been repeatedly affirmed by this Court. Smith v. State, (1979) Ind., 396 N.E.2d 898; Crisp v. State, (1979) Ind., 394 N.E.2d 115; Cottingham v. State, (1978) Ind., 379 N.E.2d 984. In applying the mockery of justice adequacy standard, this Court will look to the totality of the circumstances at trial. Crisp v. State, supra ; Blackburn v. State, supra. There is a presumption that an attorney has discharged his duty fully, and it requires strong and convincing proof to overcome this presumption. Isaac v. State, (1971) 257 Ind. 319, 274 N.E.2d 231.

After the trial, a hearing was held on defendant's motion to correct errors. This hearing was confined to the question of the effectiveness of defendant's trial counsel. Defendant complained that the interviews he had with his attorney were only superficial. Counsel interviewed defendant on twenty to twenty-five different occasions for ten to...